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THE CONSTITUTION, the LABOR UNION, and "GOVERNMENTAL ACTION" HARRY H.Wellingtont

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THE CONSTITUTION, the LABOR UNION, and THE YALE LAW JOURNAL VOLUME 70 JANUARY 1961 NUMBER 3 THE CONSTITUTION, THE LABOR UNION, AND "GOVERNMENTAL ACTION" HARRY H.WELLINGTONt LEE Oliphant could not join the Brotherhood of Locomotive Firemen and Enginemen. Yet under the Railway Labor Act 1 this union represented him in negotiations with his employer. The Brotherhood took to membership white locomotive-firemen; by constitutional provision it excluded all others.2 Oliphant was by occupation a locomotive-fireman on the railroad; by race, he was a Negro. Undeterred by the shibboleth that the law cannot compel the spirit of brotherhood, Oliphant asked a federal district court to order his admission into the union. He argued that the due process clause of the fifth amendment to the United States Constitution requires no less. This should cause raised eyebrows for one important reason. The fifth 3 amendment is a limitation only upon the actions of the federal government. Certainly the actions of a labor union are not ordinarily considered those of the government in Washington. 4 Ostensibly private actions, however, may occasionally have a sufficient nexus with governmental action to justify use of the Constitution as an instrument of control. If Oliphant could show such a nexus, it is absolutely clear that his suit would succeed. 5 Oliphant failed to make such a showing.6 Yet the facts of his case may be susceptible to an anal- tProfessor of Law, Yale University. 1. 44 Stat. 577 (1926), as amended, 45 U.S.C. §§ 151-88 (1958). 2. The Brotherhood's "Constitution limits membership to applicants 'white born'". Oliphant v. Brotherhood of Locomotive Firemen and Enginemen, 262 F.2d 359 (6th Cir. 1958), cert. denied, 359 U.S. 935 (1959). 3. "[T]he First and Fifth Amendments to the Constitution of the United States .... apply to and restrict only the Federal Government and not private persons. See Corrigan v. Buckley, 271 U.S. 323, 330; Talton v. Mayes, 163 U.S. 376, 382, 384; Withers v. Buck- Icy, 20 How. 84, 89-91; Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243; see also Virginia v. Rives, 100 U.S. 313, 318." Public Util. Comm'n v. Pollak, 343 U.S. 451, 461-62 (1952). 4. 'We do not suggest that labor unions which utilize the facilities of the National Labor Relations Board become Government agencies or may be regulated as such." Ameri- can Communications Ass'n, CIO v. Douds, 339 U.S. 382, 402 (1950). 5. Cf. Brown v. Board of Educ., 347 U.S. 483 (1954) ; Gayle v. Browder, 352 U.S. 903 (1956) ; Holmes v. City of Atlanta, 350 U.S. 879 (1955) ; Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971 (1954). 6. Oliphant v. Brotherhood of Locomotive Firemen & Enginemen, 156 F. Supp. 89 (N.D. Ohio), cert. denied, 355 U.S. 893 (1957), aff'd, 262 F.2d 359 (6th Cir. 1958), cert, THE YALE LAW JOURNAL [Vol. 70: 345 ysis sufficient to satisfy the governmental action requirements of the fifth amendment. The Supreme Court of the United States will one day surely be called upon to decide this question. While Lee Oliphant's case is recent, it is by no means a unique addition to the law reports.7 In learned journals, monographs, and books, issues analogous to those raised by Oliphant for some time now have been extensively noted.8 Some of this literature goes far beyond the question of whether the fifth amend- ment may be used to compel admission of a Negro employee to a railroad brotherhood. Ranging wide through society and deep into the Constitution commentators have suggested that all or most "powerful" private groups should be subject to all or most provisions of the Constitution. 9 The business corpora- tion and the labor union have been the principal targets of these suggestions, and the Bill of Rights and the fourteenth amendment have been envisioned as the principal instruments for control.10 For example, we are told that: The corporate organizations of business and labor have long ceased to be private phenomena. That they have a direct and decisive impact on the social, economic, and political life of the nation is no longer a matter of argument. It is an undeniable fact of daily experience. The challenge to the contemporary lawyer is to translate the social transformation of these organizations from private associations to public organisms into legal terms. 1 denied, 359 U.S. 935 (1959) ("In view of the abstract context in which the questions sought to be raised are presented by this record, the petition for writ of certiorari . is denied."). 7. Compare, e.g., Ross v. Ebert, 275 Wis. 523, 82 N.W.2d 316 (1957), with Betts v. Easley, 161 Kan. 459, 169 P.2d 831 (1946). 8. See, e.g., HALE, FREEDOM THROUGH LAW (1952); Miller, Private Governments and the Constitution (Occasional Paper for Center for the Study of Democratic Institutions, 1959) ; Rauh, Civil Rights and Liberties and Labor Unions, 8 LA. L.J. 874 (1957) ; Sum- mers, The Right to Join a Union, 47 COLUM. L. REv. 33 (1947). 9. See, e.g., Miller, The Constitutional Law of the Security State, 10 STAN. L. REv. 620, 655-56 (1958) ; Ming, Racial Restrictions and the Fourteenth Amendment: The Re- strictive Covenant Cases, 16 U. CHI. L. Rav. 203, 235-38 (1949) ; Malick, Toward a New Constitutional Status for Labor Unions: A Proposal, 21 RocKy MT. L. REv. 260 (1949) ; PEKELiS, LAw AND SOCIAL AcTION 91-128 (1950); Latham, The Commonwealth of the Corporation,55 Nw. U.L. Rv. 25 (1960). "[W]e could ... consider applying to the corporation the whole pattern of controls laid upon the states when the Federal Republic was created under the Constitution of 1787. The parallel is not too fanciful since many of the states in fact started out as corporations created by the Crown, bodies politic endowed with public authority." Id. at 35. (Emphasis in original.) 10. See, e.g., Berle, Constitutional Limitations on Corporate Activity-Protection of PersonalRights from Invasion Through Economic Power, 100 U. PA. L. REv. 933 (1952) ; BERLE, ECONOMIC POWER AND THE FREE SocIETY 17-18 (Fund for the Republic, 1957); Rauh, Civil Rights and Liberties and Labor Unions, 8 LAB. L.J. 874 (1957). 11. Friedmann, Corporate Power, Government by Private Groups, and the Law, 57 C9=4. L, REv, 155, 176 (1957). 1961] GOVERNMENTAL ACTION Another commentator suggests that: As a beginning, we can set out the following propositions: (1) The Con- stitution was framed on the theory that limitations should exist on the formal exercise of power in government but not on control exercised un- officially. (2) The essential problem of individual liberty, however, is one of freedom from arbitrary restraints and restrictions, wherever and how- ever imposed. (3) The Constitution should be so construed as to apply to arbitrary applications of power against individuals by centers of private government. (4) The main flow of group decisions in the factory com- munity would not be thrown into litigation or controversy by such a con- stitutional construction, but only those which directly and substantially affect an individual. (5) It would take only a slight modification of present constitutional doctrine to effect such a cofistitutional construction.' 2 These are engaging ideas which at the simplest level pose two questions: (1) Why the emphasis on the business corporation and the labor union? (2) Why the choice of constitutional provisions as the means of regulating these institutions ? The answer to both questions starts with a commonplace: some business corporations and some labor unions are big-indeed enormous, in every sense of the word. Bigness suggests power. And big business and big labor have power. [B]usiness and labor currently exercise vast powers. First, they have power over the millions of men and women whose lives they largely con- trol as employees or as members. Second, they exercise power more in- directly, though not less powerfully, over the unorganized citizens whose lives they largely control through standardized terms of contract, through price policy, through the tempo of production and the terms and conditions of labor. Last, they exercise control over the organized community, repre- sented by the organs of the state, in a multitude of ways: direct lobby pressures, control over the election and policies of the elected representa- tives of the people, control over the appointment of the judiciary in many states, and far reaching control over the mass media of communication.' 3 This recital of the way in which unions and corporations may use various types of power 14 suggests certain similarities between big unions, big corpora- tions, and big government. It suggests how these private institutions touch upon our social, economic, and political life. Only government, and certainly 12. Miller, supra note 8, at 12. 13. Friedmann, supra note 11, at 176-77. 14. Professor Manning on "Power" needs to be quoted again and again. The Corporate Power thesis conceives of Power as though it were Mercantilist gold bullion-physically piled on someone's desk, infinitely fungible unit for unit, and indifferently expendable to achieve any result. Yet all our experience is squarely to the contrary. Power to do A is not power to do B. The management of a particular company may be so free of shareholder control that it can pay itself salaries beyond the dreams of avarice. Here is power indeed; but what may be inferred from it as to the management's power to do other things? Can it control prices?-elect a Senator-prevent its workers from voting-secure the passage of a constitutional THE YALE LAW JOURNAL [ Vol.
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